Feds Issue Banking Regs for Marijuana Businesses

FinCEN (the Financial Crimes Enforcement Network) and Department of Justice today issued new guidelines and a memo for banks doing business with marijuana businesses. The FINCEN press release is here.

The guidance provides that financial institutions can provide services to marijuana-related businesses in a manner consistent with their obligations to know their customers and to report possible criminal activity.

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This FinCEN guidance clarifies how financial institutions can provide services to marijuana-related businesses consistent with their BSA obligations, and aligns the information provided by financial institutions in BSA reports with federal and state law enforcement priorities. This FinCEN guidance should enhance the availability of financial services for, and the financial transparency of, marijuana-related businesses.

The Cole Memo reiterates Congress’s determination that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels. The Cole Memo notes that DOJ is committed to enforcement of the CSA consistent with those determinations. It also notes that DOJ is committed to using its investigative and prosecutorial resources to address the most

The provisions of the money laundering statutes, the unlicensed money remitter statute,
and the Bank Secrecy Act (BSA) remain in effect with respect to marijuana-related conduct.
Financial transactions involving proceeds generated by marijuana-related conduct can form the basis for prosecution under the money laundering statutes (18 U.S.C. §§ 1956 and 1957), the unlicensed money transmitter statute (18 U.S.C. § 1960), and the BSA. Sections 1956 and 1957 of Title 18 make it a criminal offense to engage in certain financial and monetary transactions with the proceeds of a “specified unlawful activity,” including proceeds from marijuana-related violations of the CSA. Transactions by or through a money transmitting business involving funds “derived from” marijuana-related conduct can also serve as a predicate for prosecution under 18 U.S.C. § 1960.

Additionally, financial institutions that conduct transactions with money generated by marijuana-related conduct could face criminal liability under the BSA for, among other things, failing to identify or report financial transactions that involved the proceeds of marijuana-related violations of the CSA. See, e.g., 31 U.S.C. § 5318(g). Notably for these purposes, prosecution under these offenses based on transactions involving marijuana proceeds does not require an underlying marijuana-related conviction under federal or state law.

So Banks still have to file SARs (suspicious activity reports) for marijuana businesses, conduct due diligence on customers and file currency transaction reports for amounts in excess of $10k.

Between DOJ's 8 priorities and FINCEN's laundry list of "red flags" (see pages 2 and 3 of the memo), no one is getting a free pass here, and marijuana businesses that engage in banking are going to face a lot of scrutiny.

Reaction from the Banking Industry is mixed.

“While we appreciate the efforts by the Department of Justice and FinCEN, guidance or regulation doesn’t alter the underlying challenge for banks,” Frank Keating, president of the American Bankers Association, said in a statement, referring to the Financial Crimes Enforcement Network, the Treasury unit that issued the guidelines. “As it stands, possession or distribution of marijuana violates federal law, and banks that provide support for those activities face the risk of prosecution and assorted sanctions.”

that running a marijuana business in compliance with state law is not to be considered "trafficking in" a Schedule I controlled substance under Internal Revenue Code section 280E, the price of the product has to be inflated by an extra 30% or more by the grower, by any middleman, and then again by the retailer to cover the discriminatory tax rate. Section 280E disallows deductions from gross income for all ordinary and necessary expenses of running the business, such as equipment, rent, utilities, and salaries and benefits paid to employees. Income tax is thus due on gross income of a marijuana business, where tax is imposed on the net income of all other businesses (including totally illegal businesses).

to be a new openness, for what became a year of "one hundred flowers blooming, one hundred schools of thought contending." One year for those with alternative viewpoints to speak and write openly, in other words, to be drawn out (suckered) into the open. Then, whammo, the purges began anew.

I might be a pessimist. But I can't help noting that 'permission' can as easily be rescinded by this or a succeeding administration. Either way, the result is a lot more names on government lists, i.e., purge fodder, for those who were wondering why I thought of Mao's duplicity.